What Is a Family Maintenance and Support Claim in Alberta?

After a death, you may hear that someone has a family maintenance and support claim against the estate. The phrase sounds technical, but the idea is simple: the law gives certain dependants a way to ask the Court for support from the estate when the will, or the rules for dying without a will, leave them short.

This article explains where the claim comes from, who it protects, what the Court can order and how it affects the people running the estate.

This article covers the law of Alberta.

What the claim is and where it comes from

Family maintenance and support claims are created by Part 5, Division 2 (Maintenance and Support) of the Wills and Succession Act, SA 2010, c W-12.2. That Division covers ss. 87 to 108.

Under s. 88(1), if a person dies with a will that does not adequately provide for the proper maintenance and support of a family member, the Court may, on application, order that any provision it considers adequate be made out of the deceased's estate. The section also applies where a person dies wholly or partly intestate and a family member's share is inadequate, so the claim is not limited to cases with a will.

Who the claim protects

The claim is for a defined group called family members. It is not a general right to inherit. The group is:

• A spouse.
• An adult interdependent partner, with limits. Two people are generally partners if they have lived in a relationship of interdependence for a continuous period of not less than 3 years, or of some permanence if there is a child of the relationship, or if they have entered into an adult interdependent partner agreement. Relatives by blood or adoption can become partners only by that kind of agreement. A relationship where one person provides the other with domestic support and personal care for a fee, or on behalf of another person or organization, is not one of interdependence. A former partner is not a family member under this paragraph.
• A child under 18.
• An adult child unable to earn a livelihood because of a mental or physical disability.
• A child aged 18 to under 22 who is a full-time student and cannot withdraw from the parents' charge.
• A grandchild or great-grandchild under 18 for whom the deceased stood in the place of a parent.

A disabled adult child has no upper age limit stated in the relevant paragraph. A person who is not in these categories has no Part 5 claim.

What the Court can order

An order can benefit one or more family members, can be made from any part of the estate, and applies whether or not there is a will. The Court may impose any conditions and restrictions it considers appropriate. Support can take different forms:

Periodic payments can be secured in any manner the Court considers appropriate, and can be varied or suspended. Unless the Court orders otherwise, the order charges the whole estate, and it takes effect as if made immediately on the death, with the will treated as varied from that time.

How the Court decides and what happens to the estate meanwhile

The Court weighs factors including the family member's relationship with the deceased, age and health, capacity to contribute to their own support, and entitlement to support from another person. It also considers the deceased's reasons for the gifts made, the size and distribution of the estate, and any agreement or waiver.

While a claim is pending, the Court may make interim orders to protect or preserve estate assets or direct how the estate is administered, including suspending administration. Once notice of an application is served on the personal representative, the estate is subject to any order made, and distributing in breach creates personal liability and a possible offence.

Financial information matters too. On written request, the people involved must provide the required financial information, and if they do not, the Court may order disclosure, draw an adverse inference or award costs.

What to do next

If you think you may be a family member, or you are the personal representative facing a possible claim, act early. An application must be commenced within 6 months after the grant of probate or administration is issued, and the clock runs from the date of the grant, not the date of death. The Court may allow a later application, but only for any part of the estate that has not been distributed as of the date of the application, and that is a matter of court discretion.

• Confirm whether a grant of probate or administration has been issued, and when.
• Identify which family member category applies, if any.
• Collect records of the deceased's support, your income, health and other sources of support.
• If you are a personal representative, be cautious about distributing property until you have advice.
• Ask a lawyer to confirm how Part 5 applies to the facts.

Frequently asked questions